ICSID releases third version of proposed amendments to Arbitration Rules

The International Centre for Settlement of Investment Disputes (ICSID) has released the third draft of its proposed amendments to the ICSID Arbitration Rules. Owing to the “developing consensus on the amendments through the consultation process”, there have been fewer changes compared to earlier drafts. The latest draft refines ICSID’s recommended rule changes on topics including expedited procedures, bifurcation, third-party funding, and the publication of decisions and awards.

The proposed amendments seek to increase the efficiency and flexibility of proceedings. For example, they retain detailed provisions for expedited procedures, but contain a new ability for a tribunal to decide on a party’s request that the arbitration no longer be expedited. When deciding on such requests, tribunals are to consider the complexity of the issues, the stage of the proceeding and other relevant circumstances. Another notable refinement concerns requests for bifurcation, where ICSID has provided a non-exhaustive list of circumstances, based on case law, that tribunals must consider when ruling on such requests.

The recent impact of third-party funding is given particular attention in the latest text. For example, there is now an express provision that tribunals may consider the existence of third-party funding when making a security for costs order (although the existence of funding will not, by itself, be a sufficient basis for making such an order). Additionally, ICSID will send notice of any third-party funding to the arbitrators (whether proposed or appointed), to assist them in completing the arbitrator disclosure declaration.

The draft contains important developments as regards transparency. In particular, the parties are “deemed” to have given their consent to the publication of awards and annulment decisions if they do not object in writing within 60 days. The tribunal must nevertheless ensure that the publication of orders and decisions does not disclose any “confidential or protected information” in the event the parties disagree on what redactions are necessary. In particular, the draft defines in a separate list what information qualifies as being “confidential or protected”. In a further move towards transparency, the draft also provides that the amount billed by individual arbitrators (and not just the tribunal) will be set out in the final award.

The final consultation between ICSID and Member States is scheduled for November 2019, after which proposed amendments are due to be voted on by ICSID’s Administrative Council.